Be Wary of Privilege and Privacy Issues When Hiring Canadian Investigators

When a fraud has occurred, a private investigator is often engaged by counsel to gather evidence about the fraud and the fraudsters. If events take you to Canada, one must understand the law surrounding privilege and privacy and be cautious to avoid prejudicing the case.

An investigator must be retained “for the dominant purpose of litigation” for his work to be protected from disclosure by litigation privilege. Blair v. Wawanesa Mutual Insurance Co., 1998 ABQB 1025. To maintain the privilege, a lawyer should retain the investigator, making clear in written instructions that the work product is intended for use in litigation. Where investigators have simply been instructed to conduct an investigation without defining the purpose beforehand, the reports have been ordered produced. Whitehead v. Braidnor Construction Ltd, 2001 ABQB 1994.

Privacy has been gaining popularity as a tool to gain access to information held by investigators. So far, efforts have been unsuccessful, but a review of some of the cases are insightful. In State Farm Mutual Automobile and Assurance v. Canada, 2010 FC 736, investigation reports and videos prepared for the insurer to defend a lawsuit were found not to be subject to the Personal Information Protection and Electronic Documents Act. In Druken v. R.G. Fewer and Associates Inc, (1998) N.J. No. 312, where there had been surveillance of public acts by investigators retained to defend a personal injury case, the court held that plaintiff did not have a reasonable expectation of privacy in public actions. Similarly, in Amalgamated Transit Union Local No. 569 v. Edmonton (City), 2004 ABQB 280, video surveillance of an employee on disability leave did not violate any reasonable expectation of privacy because the surveillance occurred in a public place and was a public activity.

Thus, every effort should be made by the investigator to perform surveillance only in public areas, to access information that is publicly available or to access information which the person retaining the investigator has a right to access. Steps should be taken to maximize resulting work product to fall under the litigation privilege, not subject to disclosure.